Citation NR: 9624563
Decision Date: 08/30/96 Archive Date: 09/04/96
DOCKET NO. 92-21 333 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Denver,
Colorado
THE ISSUE
Entitlement to an increased rating for residuals of a left
knee injury, currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
P. Lambrakopoulos, Associate Counsel
INTRODUCTION
The veteran served on active duty from May to July 1991.
This appeal arises from an April 1992 rating decision of the
Louisville, Kentucky, Regional Office (RO) that awarded
service connection for patellofemoral pain of the left knee
and assigned a 10 percent rating. The veteran disagreed with
the assigned rating. Subsequently, she moved, and her claims
folder was transferred to the Denver, Colorado, RO.
The case was previously remanded by the Board of Veterans’
Appeals (Board) in April 1993 and in August 1994 for further
development of the evidence.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in essence, that her left knee disorder
is more than 10 percent disabling. Specifically, she states
that she cannot stand or work for prolonged periods of time
without severe pain. She also argues that she should be
reexamined by the Department of Veterans Affairs (VA) on the
basis that an April 1995 review of an August 1993 VA magnetic
resonance imaging (MRI) test report was inadequate.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the veteran’s claim, and it is
accordingly denied.
FINDINGS OF FACT
1. All evidence necessary for an equitable disposition of
the veteran’s claim has been developed.
2. The veteran’s left knee disability is manifested by
subjective pain, and objective evidence of flexion of the
left knee to 135 degrees and extension to about three degrees
with some pain and stiffness, but without swelling,
deformity, subluxation or medial instability.
3. On VA MRI examination in August 1993, the impression was
very thin anterior cruciate ligament, which was probably
secondary to an old injury or tear, and normal menisci.
4. Neither an exceptional nor unusual disability picture has
been presented that would render impractical the application
of the regular schedular standards in either claim.
CONCLUSION OF LAW
The criteria for an increased evaluation higher than 10
percent for the service-connected residuals of a left knee
injury are not met. 38 U.S.C.A. § 1155 (West 1991 & Supp.
1995); 38 C.F.R. § 3.321(b)(1), Part 4, §§ 4.40, 4.45,
4.71a, Diagnostic Codes 5256, 5257, 5260, 5261 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board finds that the veteran’s claim is well
grounded, in that she has presented a plausible claim.
38 U.S.C.A. § 5107(a) (West 1991); Edenfield v. Brown,
8 Vet.App. 384, 388 (1995) (en banc); Murphy v. Derwinski,
1 Vet.App. 78, 81 (1990). Pursuant to 38 U.S.C.A. § 5107(a)
(West 1991), the Board is obligated to assist the veteran in
the development of her claim. The veteran has been examined
by VA in November 1991 and June 1993, and she has been
afforded MRI testing in August 1993, which was reinterpreted
and clarified in April 1995. In addition, in response to an
August 1994 Board remand, the veteran indicated that there
were no additional records of private medical treatment.
Upon a review of the record, it is the opinion of the Board
that, for purposes of this appeal, all evidence necessary for
adjudication of this claim, including records of all relevant
medical treatment and the performance of thorough and
contemporaneous medical examinations, has been obtained. See
Hicks v. Brown, 8 Vet.App. 417, 421 (1995); Ardison v. Brown,
6 Vet.App. 405, 407 (1994); Green v. Derwinski, 1 Vet.App.
121, 124 (1991).
The veteran had torn a ligament in her left knee while
playing basketball prior to service. In June 1991, she
suffered a strain of her left knee and aggravated her
preexisting left knee disorder. Service connection for left
knee patellofemoral pain was established by means of an April
1992 rating decision, effective July 12, 1991, the date
following the veteran’s separation from active naval service.
At that time, a 10 percent rating was assigned. The veteran
sought an increased rating.
The degree of severity of residuals of a left knee injury is
ascertained, for VA purposes, by application of the criteria
set forth in Diagnostic Codes (DCs) 5256, 5257, 5260, and
5261 of VA’s Schedule for Rating Disabilities (Schedule),
38 C.F.R. Part 4, § 4.71a (1995); see also 38 C.F.R. § 4.71,
Plate II (1995). Since there is no demonstrable ankylosis of
the veteran’s left knee, DC 5256 is not applicable in this
case.
The normal range of motion of the knee is from 0 degrees of
extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate
II (1995).
A limitation of leg flexion to 45 degrees warrants a 10
percent evaluation. Also, slight recurrent subluxation or
slight lateral knee instability warrants a 10 percent
evaluation. An evaluation greater than the 10 percent rating
currently assigned is available where recurrent subluxation
or lateral instability of the knee is moderate (DC 5257);
where flexion of the leg is limited to 30 degrees (DC 5260);
or where extension of the leg is limited to 15 degrees (DC
5261). If any of these findings is shown, a 20 percent
rating is applicable.
On VA examination in November 1991, the veteran complained of
left knee pain when standing and swelling, giving out, and
locking of the left knee at times. Her left knee was
generally swollen around the patellar area. She limped
during normal walking, and she stood with her left knee
flexed and her weight on her right leg. There was severe
pain when her left knee was extended, and she was unable to
fully extend her left knee. No patellar dislocation was
noted. Drawer signs were negative. There was no
crepitation. The diagnosis was internal derangement of the
left knee with possible dislocating patella.
In late January 1992, the veteran sought private emergency
treatment for her left knee pain. In February 1992, the
veteran was examined by a private physician. She complained
of popping of the left knee and persistent pain on standing
at the anterior portion of the patellar tendon. She also
reported that her left knee would give way when standing and
when pushing a cart. On examination, there was no localized
tenderness. She had mild patellar tenderness. However, she
had increased pain with patellofemoral compression. She had
no apprehension signs with patellofemoral subluxation. Her
X-rays were noted as showing a normal knee with perhaps some
slight lateral tilting of the patella. The impression was
patellofemoral pain of the left knee.
The veteran was reexamined by VA in June 1993. She reported
that her left knee was “sore all the time” and that she could
not work while standing because of the pain. She stated that
she had used various over-the-counter treatments as well as
ice packs and local heat for relief. She wore a Velcro cuff
over her left knee. She also reported that she was working
at a sedentary job.
On examination in June 1993, there was no swelling or
deformity. Both knees looked identical with the same
muscular development “and so forth.” The examining VA
physician stated: “There is just no observable difference in
the two knees or any apparent impairment to the injured
knee.” (Emphasis added.) There was some slight tenderness
to the patella and parapatellar area. Likewise, the veteran
complained of some pain in the patellar tendon when reflexes
were tested. There was no subluxation of the patella and no
lateral or medial instability of the knee. The medial and
collateral ligaments were both strong and non-tender, while
the veteran stated that there was pain in the area of those
ligaments when the knee was stressed in those directions.
The anterior and posterior cruciate ligaments were also
strong, with some tenderness to these areas when stressed,
although the tenderness was not as marked as the apparent
tenderness to the collateral ligaments. The physician
indicated that the veteran was so apprehensive on testing the
collateral and cruciate ligaments that the interpretation of
her actual pain was rendered somewhat difficult. On testing
for range of motion, flexion was to 135 degrees with some
pain and stiffness. Extension was to about three degrees
with some pain and stiffness. On gentle extension of the
knee with some assistance by the examiner, the veteran
stopped at about 20 degrees, but with some coaxing, the knee
could be further extended to about three degrees “without any
difficulty and without any pain to speak of.” (Emphasis
added.) It was noted, however, that she could not extend her
left knee to zero degrees. The veteran walked with a slight
to moderate limp favoring her left leg, and she was unable to
perform squats or deep knee bends.
Summarizing his findings on examination, the examining VA
physician wrote: “There seems to be an inordinate amount of
symptomatology here in view of the rather mild degree of
initial trauma, in addition to the paucity of physical
examination findings.” (Emphasis added.) The diagnoses were
patellofemoral pain of the left knee and mild stiffness of
the left knee with slightly impaired flexion and extension.
The examiner recommended an MRI examination to rule out a
meniscal tear.
MRI examination of the left knee was accomplished in August
1993. There was a small focal area of decreased signal
intensity in the proximal tibia as well as two additional
small areas of decreased signal intensity in the distal
femur. The lateral and medial meniscus appeared normal. No
effusion was seen. The posterior cruciate ligament appeared
normal. The articular cartilage appeared normal. A very
thin anterior cruciate ligament present. The impression was
very thin anterior cruciate ligament, which is probably
secondary to an old injury or tear, and normal menisci.
Additionally, the examiner noted that the foci of decreased
signal intensity in the proximal tibia and distal femur
represent red marrow conversion.
In April 1995, pursuant to a remand by the Board, the August
1993 MRI report was reviewed by the Clinic Director of a VA
Compensation and Pension Unit. In the resulting April 1995
report, the VA physician wrote that the medial and lateral
menisci were normal in appearance with no evidence of a tear.
The anterior cruciate ligament appeared quite thin, although
a few small fibers could be seen on the sagittal views. The
posterior cruciate ligament was intact as were the medial and
collateral ligaments. The patella was normal in
configuration, and the patellar ligaments appeared normal.
Although the patellar cartilage could not be evaluated in
detail on the basis of the slices used in the imaging
process, it was noted that no gross defects were seen. The
medial and lateral patellar retinaculum showed no
abnormalities. No plica were visible. There was a small
quantity of joint fluid present. No obvious hyaline
cartilage defect was seen. On one of the views, there were
two small areas of decreased signal in the bone marrow of the
femoral metaphysis and the proximal tibial metaphysis. The
impression was thinned anterior cruciate ligament, probably
the sequelae of the previous tear, no evidence of meniscal
injury, and small areas of bone marrow heterogeneity in the
distal femur and proximal tibia. The physician specifically
remarked that the appearance of the bone marrow findings was
consistent with residual red marrow surrounded by yellow
marrow and that this was a normal variant for a woman of the
veteran’s age and was not likely to be the cause of any
symptoms. Contrary to the veteran’s argument, the April 1995
report provides sufficient detail regarding the meaning of
the “red marrow conversion” described in the August 1993 MRI
report in that it specifically describes the significance of
that term within the context of this particular case.
The various VA examinations, as well as the private
examination, indicate that there is no subluxation or lateral
instability. Therefore, a higher rating is not available
under DC 5257.
In addition, the June 1993 VA examination findings of flexion
to 135 degrees with some pain and stiffness and extension to
about three degrees with some pain and stiffness do not
support more than a 10 percent rating under DCs 5260 or 5261.
This is in keeping with the June 1993 VA examination report
diagnosis of mild stiffness of the left knee with slightly
impaired flexion and extension. The Board also notes that
the June 1993 VA examination adequately described the degree
of functional loss due to pain in that range of motion was
measured with objective manifestations of pain in mind.
Indeed, the examiner specified that the veteran flexed her
left knee to about three degrees without any difficulty or
pain to speak of and that flexion became painful at that
point. The examining physician also described the veteran’s
subjective history of pain. Under 38 C.F.R. § 4.40 (1995),
functional loss may be due to, in pertinent part, “pain,
supported by adequate pathology and evidenced by the visible
behavior of the claimant undertaking the motion.” “Weakness
is as important as limitation of motion, and a part which
becomes painful on use must be regarded as seriously
disabled.” Ibid. It is the opinion of the Board that the
record contains adequate descriptions of pathology and
functional loss due to pain. See 38 C.F.R. §§ 4.2, 4.40,
4.45 (1995); Voyles v. Brown, 5 Vet.App. 451, 453 (1993)
(United States Court of Veterans Appeals held that
examination discussing functional loss due to pain was
required because prior VA examination had merely noted
veteran’s complaints of pain); Schafrath v. Derwinski,
1 Vet.App. 589, 592 (1991) (regulations recognize that
functional loss may be caused by pain and must, accordingly,
be rated); see also DeLuca v. Brown, 8 Vet.App. 202, 206
(1995).
The veteran has stated that she cannot work while standing up
or while pushing a cart, but she has also indicated that she
was working at a sedentary job without any reported effects
of her disability. The Board finds no other evidence of
“marked interference with employment or frequent periods of
hospitalization”. 38 C.F.R. § 3.321(b)(1) (1995).
Therefore, the instant case does not present such an
exceptional or unusual disability picture so as to render
impractical the application of the regular schedular
standards. Ibid.
Accordingly, the Board is of the opinion that the
preponderance of the evidence is against the veteran’s claim
for an increased rating for residuals of a left knee injury.
ORDER
An increased rating for residuals of a left knee injury is
denied.
JOAQUIN AGUAYO-PERELES
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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